Monday, April 15, 2013

Are You Sure You're the Right Person for the Job? - Standing in the Gay Marriage Cases

This is the second in a series of articles that explore the Perry and Windsor gay marriage cases. This article focuses the proponents' basic arguments. Others will explore deeper substantive issues and the unique position of Justice Kennedy, who is likely the deciding vote and who is also the author of the two most important cases dealing with gay rights; Romer v. Evans and Laurence v. Texas.

Prop 8 –
Hollingsworth v. Perry: Can supporters
of a law appeal if the government declines to do so?

Standing is basically the right to bring a case to the Court. In our legal system, one can only bring a case if they have suffered an individualized harm and a favorable decision by the Court would be likely to remedy that harm. While there is
no question that the plaintiffs, two same-sex couples seeking marriage
licenses, were harmed by the legislation, the major standing question before
the court, since as the State of California declined to appeal, is whether or
not the current petitioners, as supporters of the law, have standing to bring
this challenge.

The California
Supreme Court held that these petitioners have standing, however as the
challenge presents a federal question, the Supreme Court is not bound to
respect that. As established in Article
III of the US Constitution; there must be a real injury for a party to have
standing. Standing that generalized,
rather than based on an injury specific to the petitioner has generally been
held to be insufficient. For example in
United States v. Richardson the Court held that a taxpayer could not challenge
the unpublished CIA budget. Other
examples include City of Los Angeles v. Lyons and Allen v. Wright.

The only
exception so far established is from Flast v. Cohen, which allowed for the
challenging of of government expenditure that supposedly violated the
establishment clause. The reasoning
behind this decision was that, if not for the exception, these kinds of
violations could never be challenged.
Not having a challenger, however, has not always been a sufficient
reason to allow standing, See Massachusetts v. Mellon, for example. Also, rather than expanding the exception in
Flast, the court has consistently contracted it. A later case found no standing to challenge
governmental grants of property to religious organizations.

The petitioners
in this case have suffered an ideological harm as well as the potential loss of
the lobbying money and effort. It would
be surprising if the court found that a lobbyist not getting his way would have
standing to sue based on his expenditure.
At the same time, if these petitioners have no right to sue, it is likely
that no one does. While that mattered in
Flast, it did not in Mellon and having no one able to sue is hardly dispositive
of a grant of standing. It is also worth
noting that in oral arguments, about half of the time was spent on standing and
Justice Kennedy seemed especially troubled.

United States v. Windsor: Can
members of congress petition for review of DOMA?

DOMA
defines the term “marriage” under federal law as a “legal union between one man
and one woman.” Functionally, it overrides the full faith and credit clause
with regard to same-sex marriage and also prevents same-sex couples from
enjoying the same federal tax advantages as opposite-sex couples.

Aside from the
constitutional problems, it has created issues with emergency care, inheritance,
and taxes. Like with Al Capone, it was
the tax issue that caused the problems and it was the inheritance tax that that
brought Edith Windsor to court.

In
this case, like in Perry, the Obama Administration has refused to defend the
act and has declared that it believes it unconstitutional. The “House Bipartisan Legal Advisory Group" voted (ironically) along party lines, 3-2 to intervene and defend DOMA. There has never been a case that has
addressed this exact issue, but in Goldwater v. Carter, the court dismissed the
issue of whether Congress had a role in repudiating treaties as a non-justiciable
political question. That is at least
some precedent for the court not wanting to decide cases where Congress is
suing in opposition to the President, but the value as precedent is limited
more to a historical norm than to law.

It
is very possible that these cases could both be dismissed for a lack of
standing. The court used to have a
policy of not deciding on Constitutional issues if there was a non-constitutional
means of disposing of the case. This was
per Justice Brandeis’ dissenting opinion in Ashwander v. Tennessee Valley
Authority. Fifty years ago, dismissal
based on standing would have been more likely than not, however, the court has
been less quick to dismiss in recent years.
Still, this may be a convenient way to dispose of controversial cases. The court could do this and then wait a few
more years before deciding on these important issues.

About Geoffrey J. Miller

Geoffrey J. Miller graduated with high honors from the University of Connecticut School of Law, where he was an associate editor of the Connecticut Law Review. Geoffrey is a practicing attorney who focuses on insurance coverage, fraud and crime coverage, cyber risk, and special event insurance.

Geoffrey is also an OCR and Ultra Runner who's competed in several ultra-distance events and at the Obstacle Course Racing World Championships in 2017.

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